Ali v. Garland ( 2022 )

Case: 22-60031 Document: 00516554456 Page: 1 Date Filed: 11/22/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 22, 2022
No. 22-60031
Lyle W. Cayce
Summary Calendar
Clerk
Haider Ali,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A216 711 653
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Haider Ali, a native and citizen of Pakistan, petitions for review of a
decision of the Board of Immigration Appels (BIA) denying his motion to
reopen removal proceedings on the basis of changed country conditions in
Pakistan. Ali argues that the BIA erred in denying his motion to reopen based
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 22-60031
on the finding that he had failed to show, for his asylum and withholding of
removal claims, that the Pakistani government was unable and unwilling to
control the Taliban. Additionally, he argues that the BIA engaged in
impermissible factfinding in violation of 8 C.F.R. § 1003.1(d)(3)(iv)(A) when
it found he had failed to show that it would be unreasonable for him to
relocate within Pakistan to avoid the Taliban.
This court reviews the denial of a motion to reopen under “a highly
deferential abuse-of-discretion standard, regardless of the basis of the alien’s
request for relief.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.
2009). The BIA “abuses its discretion when it issues a decision that is
capricious, irrational, utterly without foundation in the evidence, based on
legally erroneous interpretations of statutes or regulations, or based on
unexplained departures from regulations or established policies.” Barrios-
Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014).
The BIA’s factual findings are reviewed for substantial evidence; its
rulings of law are reviewed de novo. Gomez-Palacios, 560 F.3d at 358. Under
the substantial evidence standard, “this court may not overturn the BIA’s
factual findings unless the evidence compels a contrary conclusion.” Id.To qualify for asylum or withholding of removal, an applicant must
show persecution “by the government or forces that a government is unable
or unwilling to control.” Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir.
2006); see Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006). Ali argues
that the BIA’s finding that he failed to show that the Pakistani government
was unable or unwilling to protect him from the Taliban is not supported by
substantial evidence. He relies on the affidavit of Dr. Charles H. Kennedy,
which he attached to his motion to reopen. According to Dr. Kennedy, who
purports to be an expert on country conditions in Pakistan, “Pakistani
institutions seem to be unwilling or unable to protect Haider Ali from the
Taliban or related groups.” Even Dr. Kennedy acknowledges, however, that
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No. 22-60031
policies instituted by the Pakistani government have “slowed the rate of
terrorist violence,” even though some areas remain “quite dangerous.”
Ali also suggests the police response to his brother’s shooting shows
that the Pakistani government is unable or unwilling to control the Taliban.
As the BIA stated, though, the police sought out Ali’s brother at the hospital,
made an official report, and referred the case for investigation.
Ultimately, Ali has failed to demonstrate a “complete helplessness”
by the Pakistani government to protect citizens targeted by the Taliban.
Shehu v. Gonzalez, 443 F.3d 435, 437 (5th Cir. 2006) (internal quotation
marks and citation omitted). As Ali’s own expert acknowledges, the
Pakistani government has taken steps to combat terrorist violence, which is
on the decline. Accordingly, there is substantial evidence supporting the
BIA’s finding that Ali failed to establish that the Pakistani government was
unable or unwilling to control the Taliban because the record evidence does
not compel a contrary conclusion. See Gomez-Palacios, 560 F.3d at 358.
Finally, Ali argues the BIA engaged in impermissible factfinding in
violation of Section 1003.1(d)(3)(iv)(A) when it found he failed to show it
would be unreasonable for him to relocate within Pakistan to avoid the
Taliban. A claim that the BIA “engaged in impermissible factfinding” must
be raised in a motion to reconsider, else it presents a “wholly new ground for
relief that arises only as a consequence of” the BIA’s error. Martinez-
Guevara v. Garland, 27 F.4th 353, 360 (5th Cir. 2022) (internal quotation
marks, citations, and emphasis omitted). Because Ali failed to raise his claim
of impermissible factfinding in a motion to reconsider, it is unexhausted, and
this court lacks jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Roy v.
Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
The petition for review is DENIED in part and DISMISSED in
part.
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